12 Cal.4th 593, 49 Cal.Rptr.2d 390, 909 P.2d 994
In January 1991 a brown van drove through the Hunter's Point neighborhood of San Francisco around 2 a.m. on the 13th.1
Several shots were fired from the van at a group of young people listening to music on the street, killing 15-year-old Hagbom Saileele.2 Defendant David Chatman and another man fired from the rear of the van while evidence indicated defendant Jamal K. Swain was driving.3 The victim was shot twice from behind and died during surgery.4
Police recovered the abandoned van containing surgical gloves, expended cartridges, a hooded ski mask, and two handguns including the .380-caliber semiautomatic from which the fatal shots were fired.5 Swain's fingerprint was found on the inside of the driver's side window.6 The .380-caliber gun was traced to Chatman through a series of transactions.7 Chatman initially denied knowledge of the gun and van but later admitted purchasing it and claimed it had been stolen or sold.8
At trial Chatman testified he was in the van to retaliate for a car theft but fired only in self-defense and that Swain was not present.9 Swain testified he had entered the van earlier but left due to the smell of marijuana and was not involved in the shooting.10 Swain was also accused of threatening witnesses while in jail.11 The jury convicted Chatman of second degree murder and conspiracy to commit second degree murder and convicted Swain of conspiracy to commit second degree murder and attempting to dissuade a witness but acquitted him of murder.12
Both defendants were sentenced to terms including 15 years to life for the conspiracy convictions.13 The Court of Appeal affirmed the convictions and sentences.14 Defendants and the People petitioned for review which the Supreme Court granted limiting review to whether intent to kill is required for conspiracy to commit murder and the proper punishment under Penal Code section 182.15
Whether intent to kill is a required element of the crime of conspiracy to commit murder?16
Conspiracy is a specific intent crime.17 It requires both an intent to agree and a further specific intent to commit the target offense.18 Murder requires malice aforethought.19 Intent to kill is the functional equivalent of express malice.20 Therefore conspiracy to commit murder requires proof of intent to kill and cannot rest on implied malice.21
Yes. The jury received instructions on both express and implied malice second degree murder in connection with the conspiracy counts.22 General verdicts were returned finding the defendants guilty of conspiracy to commit second degree murder.23 The facts of the drive-by shooting permitted the jury to find an intentional act dangerous to human life with conscious disregard but without any intent to kill.24
Chatman admitted firing shots from the van.25 Swain's fingerprint was recovered from the driver's side window.26 The verdicts do not reveal whether the jury found the specific intent to kill necessary for conspiracy.27
Because the jury may have convicted without finding intent to kill, the conspiracy convictions cannot stand.28
Related opinions on this issue
Joined by Arabian, J.
Justice Mosk concurs in the judgment reversing the convictions but reaches that result by a different route.29 He maintains that the only cognizable offense is conspiracy to commit murder simpliciter.30 This offense always requires intent to kill unlawfully.31
It is punished as first degree murder under Penal Code section 182.32 In his view the Legislature acquiesced in the rule of People v. Kynette that there is no separate crime of conspiracy to commit second degree murder.33 The footnote in People v. Horn purporting to authorize such verdicts has been superseded by the legislative abolition of diminished capacity and the mature-and-meaningful-reflection requirement for premeditation.34
He therefore concludes that the verdicts labeling the offense conspiracy to commit second degree murder rest on a nonexistent crime and must be reversed as a matter of law.35
Whether a conviction of conspiracy to commit second degree murder can rest on a theory of implied malice?36
No. The jury was instructed on implied malice second degree murder.39 The prosecutor argued the case could be an implied malice case.40 The drive-by shooting facts include the recovery of the .380-caliber handgun traced to Chatman.41 Swain's fingerprint was on the van window.42
These facts could support a finding that the conspirators intended an act dangerous to life with conscious disregard.43 Yet the instructions permitted conviction without any finding that the conspirators intended to kill the victim.44 Such a conviction is incompatible with the specific intent element of conspiracy.45
A conviction of conspiracy to commit second degree murder cannot rest on implied malice.46
Related opinions on this issue
Justice Kennard concurs that intent to kill is required but parts company with the majority on the further question of degrees.47 She would hold that conspiracy to commit murder may be either conspiracy to commit first degree murder or conspiracy to commit second degree express-malice murder.48 The distinction depends on whether the conspirators' agreement reflects deliberation and premeditation.49
Because the jury here expressly found the target offense to be second degree murder, she concludes the defendants may be retried for conspiracy to commit second degree express-malice murder without violating double jeopardy.50 The punishment for any such conviction would be the term prescribed for second degree murder.51
Whether the instructional error permitting a conspiracy conviction on an implied malice theory requires reversal of the convictions?52
Yes. The jury received implied malice instructions.55 The prosecutor repeatedly referred to implied malice during closing argument.56 The verdicts were general.57 Chatman was convicted of second degree murder.58 That conviction itself could have rested on implied malice.59 Swain was acquitted of murder entirely.60 Nothing in the verdicts or the record establishes that the jury necessarily found intent to kill rather than implied malice on the conspiracy counts.61
The instructional error was prejudicial and the conspiracy convictions must be reversed.62